Judge says big adverse action fine a warning to others

Stressing the importance of workplace health and safety protections, the Federal Court has imposed heavy fines on cardboard giant Visy Packaging for taking adverse action against a union representative who sidelined two defective forklifts and resisted the company's attempts to return them to service without adequate modifications.

Justice Bernard Murphy found in May that Visy and its operations manager contravened workplace rights protections in s340 of the Fair Work Act when they subjected the safety representative to an investigation and suspended him on full pay.

The company also breached the section when it issued him with a final written warning 10 days later (see Related Article).The representative exercised his responsibilities under s25 of the Victorian Occupational Health and Safety Act when he "tagged" the forklifts on August 5, 2011, over concerns that their reverse warning beepers were not loud enough.

In his penalty decision, Justice Murphy accepted the AMWU's and the company's agreement that the investigation and suspension constituted one breach, and the warning letter a second breach.

The union and Visy had also agreed that the penalty range for the first breach should be between 60% and 80% of the maximum $33,000 fine for the company and the $6,600 maximum for the operations manager, and between 70% and 90% for Visy for the second contravention.

Justice Murphy agreed with the proposed ranges, and opted for 70% of the maximum fines for the investigation and suspension breach, and 75% for the final warning breach.

This translated to penalties for Visy of $23,100 and $24,750 for the two contraventions, and the operations manager $4,620 with the full $52,470 sum to be paid to the union that initiated the prosecution.

The judge said general deterrence was the most significant factor in his imposition of high penalties, noting the serious obligations imposed by s25 of the OHS Act.

"An elected health and safety representative takes on an important function under that Act, and it is a role which may bring him or her into conflict with an employer. Adverse action against a health and safety representative exercising his or her powers under the OHS Act must be treated as a serious matter," he said.

"In my view the most important single factor in the present case is to fix a penalty which (while not oppressive) sends a message that deters others from the type of conduct seen in this case. I see this as indicating a penalty at the upper end of the scale."Justice Murphy said specific deterrence was also an important factor, but noted that the maximum fines were "unlikely to provide much of a deterrent to a company the size of Visy", which recorded consolidated revenue of $330m in the 2012 financial year.

He concluded nevertheless that the contraventions were "serious", and "Visy must be deterred from again infringing the workplace right enjoyed by health and safety representatives and employees to raise their legitimate occupational health and safety concerns".

The union relied on a WorkSafe Victoria publication entitled "A Handbook for Workplaces - Forklift Safety reducing the risk", which refers to the vehicle as "one of the most dangerous pieces of equipment found at Victorian workplaces".

"I have no difficulty in accepting that forklifts operating near pedestrian traffic, as is often required in an industrial setting, is inherently dangerous. In my view Visy should have understood this and been guided by that knowledge," Justice Murphy said.

The AMWU argued that Visy's conduct was inconsistent with the company's own "Tuff on Safety" campaign, and made it "hollow". But the judge did not accept that Visy did not take OHS seriously.

He said that "a straight-forward health and safety issue" had been blown out of proportion by the parties, and that the representative could have adopted a more conciliatory approach.

Justice Murphy accepted as mitigating factors Visy's proposal to introduce compliance training on OHS responsibilities and to advise employees at "toolbox" meetings of their rights to raise genuine health and safety concerns.

He also endorsed the parties' agreement that Visy would withdraw the final written warning and treat it as null and void, and would not issue any further warning over the representative's conduct on August 5, 2011.